Fighting fire with fire: Is it wise to countersue?

That’s what many employers say after being hit with what they believe is a frivolous employee lawsuit.

The First Amendment protects the rights of companies to seek such redress in court. Employers can sometimes prevail but, in most cases, a counterclaim is not a smart move. Three reasons:

First, your efforts are unlikely to be successful unless there is a strong factual basis for the counterclaim. (The fact that the employer wins the original case doesn’t necessarily mean the employee’s case was frivolous.)

Second, a decision to sue an em­­ployee may detract from your otherwise strong defense—and add to your legal costs.

Finally, and maybe most important, a countersuit filed out of sheer anger against the employee may actually be considered retaliation, which would add additional liability.

Tip: Just the mention of a counter­­claim could make employees think twice about pursuing a weak case. Some man­­agement attorneys ask employees during depositions whether they realize that they could be ordered to pay the employer’s costs and attorneys’ fees if the case is deemed frivolous.

Online resource: Read an attorney’s full analysis of the countersuit strategy.